Potential nominee profile: Amy Coney Barrett

Credit: University of Notre Dame

In November 2017, President Donald Trump released a revised list of potential Supreme Court nominees. The November 2017 list was an expanded version of two earlier lists, announced during the 2016 presidential campaign, from which then-candidate Trump pledged, if elected, to pick a successor to the late Justice Antonin Scalia, who died on February 13, 2016. First on the new list – because it was in alphabetical order – was Amy Coney Barrett, a Notre Dame law professor (and former Scalia clerk) who had recently been confirmed to a seat on the U.S. Court of Appeals for the 7th Circuit. Barrett’s confirmation hearings had received considerable attention after Democrats on the Senate Judiciary Committee – most notably, Senator Dianne Feinstein of California – grilled her on the role of her Catholic faith in judging. Feinstein’s criticism did not stop Barrett from being confirmed, and since then there has been speculation that it may have in fact strengthened her case to fill the seat that will be vacated by the retirement of Justice Anthony Kennedy.

The 46-year-old Barrett grew up in Metairie, Louisiana, a suburb of New Orleans, and attended St. Mary’s Dominican High School, a Catholic girls’ school in New Orleans. Barrett graduated magna cum laude from Rhodes College, a liberal arts college in Tennessee affiliated with the Presbyterian Church, in 1994. (Other high-profile alumni of the school include Abe Fortas, who served as a justice on the Supreme Court from 1965 to 1969 and Claudia Kennedy, the first woman to become a three-star general in the U.S. Army.) At Rhodes, she was a member of Phi Beta Kappa and was also recognized as the most outstanding English major and for having the best senior thesis.

After graduating from Rhodes, Barrett went to law school at Notre Dame on a full-tuition scholarship. She excelled there as well: She graduated summa cum laude in 1997, received awards for having the best exams in 10 of her courses and served as executive editor of the school’s law review.

Barrett then held two high-profile conservative clerkships, first with Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit, from 1997-1998 then with the late Justice Antonin Scalia, from 1998-1999. After leaving her Supreme Court clerkship, she spent a year practicing law at Miller, Cassidy, Larroca & Lewin, a prestigious Washington D.C. litigation boutique that also claims former U.S. solicitor general Seth Waxman, former deputy attorney general Jamie Gorelick, and two regular contributors to this blog – John Elwood and editor Edith Roberts – as alums. Barrett went to Baker Botts, a Texas-based firm, after Miller Cassidy merged with the larger law firm, in 2000 and spent another year there before leaving for academia. To the chagrin of Democratic senators during her confirmation process, Barrett was only able to recall a few of the cases on which she had worked, and she indicated that she had not argued any appeals while in private practice.

Barrett spent a year as a law and economics fellow at George Washington University before heading to her alma mater, Notre Dame, in 2002 to teach federal courts, constitutional law and statutory interpretation. Barrett was named a professor of law at the school in 2010; four years later, she became the Diane and M.O. Research Chair of Law. Barrett twice received a “distinguished professor of the year” award, in 2010 and 2016.

While at Notre Dame, Barrett signed a 2012 “statement of protest” condemning the accommodation that the Obama administration created for religious employers who were subject to the ACA’s “birth control” mandate. The statement lamented that the accommodation “changes nothing of moral substance and fails to remove the assault on individual liberty and the rights of conscience which gave rise to the controversy.” Barrett was also a member of the Federalist Society, the conservative legal group, from 2005 to 2006 and then again from 2014 to 2017. In response to written questions from Democratic senators during her 7th Circuit confirmation process, Barrett indicated that she had rejoined the group because it gave her “the opportunity to speak to groups of interested, engaged students on topics of mutual interest,” but she added that she had never attended the group’s national convention.

The best insight into how Barrett might rule as a Supreme Court justice likely comes from her academic scholarship, an area in which she has been prolific. The Washington Post reported on Saturday that Trump wants a nominee with a “portfolio of solid academic writing,” and Barrett (perhaps more than any other nominee on the reported shortlist) fits that bill to a tee. Several of those articles, however, drew fire at Barrett’s 7th Circuit confirmation hearing, with Democratic senators suggesting that they indicate that Barrett would be influenced by her Catholic faith, particularly on the question of abortion.

Barrett co-wrote her first law review article, Catholic Judges in Capital Cases, with Notre Dame law professor John Garvey (now the president of the Catholic University of America); the article was published in the Marquette Law Review in 1998, shortly after her graduation from Notre Dame. It explored the effect of the Catholic Church’s teachings on the death penalty on federal judges, but it also used the church’s teachings on abortion and euthanasia as a comparison point, describing the prohibitions on abortion and euthanasia as “absolute” because they “take away innocent life.” The article also noted that, when the late Justice William Brennan was asked about potential conflict between his Catholic faith and his duties as a justice, he responded that he would be governed by “the oath I took to support the Constitution and laws of the United States”; Barrett and Garvey observed that they did not “defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”

When questioned about the article at her 7th Circuit confirmation hearing, Barrett stressed that she did not believe it was “lawful for a judge to impose  personal opinions, from whatever source they derive, upon the law,” and she pledged that her views on abortion “or any other question will have no bearing on the discharge of my duties as a judge.” She acknowledged that, if she were instead being nominated to serve as a federal trial judge, she “would not enter an order of execution,” but she assured senators that she did not intend “as a blanket matter to recuse myself in capital cases if I am confirmed” and added that she had “fully participated in advising Justice Scalia in capital cases as a law clerk.”

Barrett’s responses did not mollify Feinstein, who suggested that Barrett had a “long history of believing that religious beliefs should prevail.” In a widely reported exchange, Feinstein told Barrett that, when “you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for years in this country.”

In another article, Stare Decisis and Due Process, published in the University of Colorado Law Review, Barrett discussed the concept of stare decisis – a legal doctrine that generally requires courts to follow existing precedent, even if they might believe that it is wrong. Barrett wrote that courts and commentators “have thought about the kinds of reliance interests that justify keeping an erroneous decision on the books”; in a footnote, she cited (among other things) Planned Parenthood v. Casey, the 1992 decision reaffirming Roe v. Wade. Barrett’s detractors characterized the statement as criticism of Roe v. Wade itself, while supporters such as conservative legal activist Ed Whelan countered that the statement did not reflect Barrett’s views on Roe itself, but instead was just an example of competing opinions on the reliance interests in Roe.

Despite the criticism from Democrats, Barrett garnered bipartisan support at her 2017 confirmation hearing. A group of 450 former students signed a letter to the Senate Judiciary Committee, telling senators that their support was “driven not by politics, but by the belief that Professor Barrett is supremely qualified.” And she had the unanimous support of her 49 Notre Dame colleagues, who wrote that they had a “wide range of political views” but were “united however in our judgment about Amy.”

After Barrett’s confirmation hearing but before the Senate voted on her nomination, The New York Times reported that Barrett was a member of a group called People of Praise.” Group members, the Times indicated, “swear a lifelong oath of loyalty to one another, and are assigned and accountable to a personal adviser.” Moreover, the Times added, the group “teaches that husbands are the heads of their wives and should take authority for their family.” And legal experts questioned whether such oaths “could raise legitimate questions about a judicial nominee’s independence and impartiality.”

Barrett declined the Times’ request for an interview about People of Praise, whose website describes the group as an “ecumenical, charismatic, covenant community” modeled on the “first Christian community.” “Freedom of conscience,” the website says, “is a key to our diversity.” Slate recently interviewed the group’s leader, a physics and engineering professor at Notre Dame, who explained that members of the group “often make an effort to live near one another” and agree to donate 5% of their income to the group.

Barrett was confirmed to the 7th Circuit by a vote of 55 to 43. Three Democratic senators – her home state senator, Joe Donnelly, Virginia’s Tim Kaine, and Joe Manchin of West Virginia – crossed party lines to vote for her, while two Democratic senators (Claire McCaskill of Missouri and Robert Menendez of New Jersey) did not vote.

Because Barrett has spent just eight months on the 7th Circuit, she has compiled a relatively small body of opinions, most of them fairly uncontroversial. One case that would almost certainly draw attention if she were nominated came shortly after she took the bench: EEOC v. AutoZone, in which the federal government asked the full court of appeals to reconsider a ruling against the EEOC in its lawsuit against AutoZone, an auto parts store. The EEOC had argued that the store violated Title VII of the Civil Rights Act, which bars employees from segregating or classifying employees based on race, when it used race as a determining factor in assigning employees to different stores – for example, sending African-American employees to stores in heavily African-American neighborhoods. A three-judge panel (that did not include Barrett) ruled for AutoZone; Barrett joined four of her colleagues in voting to deny rehearing by the full court of appeals.

Three judges – Chief Judge Diane Wood and Judges Ilana Diamond Rovner and David Hamilton – would have granted rehearing en banc. Those three also had strong words in the dissenting opinion that they filed. They alleged that, under “the panel’s reasoning, this separate-but-equal arrangement is permissible under Title VII as long as the ‘separate’ facilities really are ‘equal’” – a conclusion, they continued, that is “contrary to the position that the Supreme Court has taken in analogous equal protection cases as far back as Brown v. Board of Education.”

Another high-profile case before the 7th Circuit involves the battle over “sanctuary cities” – jurisdictions that limit cooperation with federal immigration authorities. In June, the full court granted the federal government’s petition to reconsider part of a three-judge panel’s ruling that left in place a nationwide injunction against the federal government’s policy of withholding law-enforcement grants from such jurisdictions. The announcement means that the federal government can enforce the policy only against the city of Chicago, the plaintiff in the case. There is no way to know how Barrett voted on the government’s request, as the court’s order indicated only that a “majority of the judges participating in the en banc rehearing of this case” had voted in favor of the stay that the government had sought.

Barrett was also part of a panel that tackled another contentious issue in environmental and property law, as developers and farmers (among others) have contended that the federal government has gone too far: What constitutes the “waters of the United States” for purposes of determining whether the federal Clean Water Act applies to wetlands? In June of this year, Barrett joined a ruling written by Judge Amy St. Eve, also a Trump appointee to the 7th Circuit, that sent the case of an Illinois developer back to the U.S. Army Corps of Engineers for reconsideration. The Corps had found that the wetlands at issue – which were approximately 11 miles away from the nearest navigable river – were “waters of the United States,” but the panel (expressing some frustration) concluded that the determination by the Corps was not backed by “substantial evidence in the record” even though the “dispute has consumed almost as many years as the Warmke wetlands have acres.”

Barrett joined another ruling by St. Eve in the case of Kishunda Jones, who had been designated by her mother, Linda, as the beneficiary of her pension. When Linda, who suffered from a recurring form of cancer, died three days before her pension was supposed to begin, the committee that oversaw Linda’s pension rejected Kishunda’s request to receive the pension. It explained that, when a participant dies before her pension begins, only surviving spouses can receive a benefit from the pension. The panel agreed with the district court that the “facts of this case are undoubtedly unfortunate,” but it nonetheless upheld the district court’s ruling in favor of the pension fund on the ground that its decision was neither arbitrary nor capricious – all that the law requires in such a scenario.

In Schmidt v. Foster, Barrett dissented from the panel’s ruling in favor of a Wisconsin man who admitted that he had shot his wife seven times, killing her in their driveway. Scott Schmidt argued that he had been provoked, which would make his crime second-degree, rather than first-degree, homicide; the trial judge reviewed that claim at a pretrial hearing that prosecutors did not attend, and at which Schmidt’s attorney was not allowed to speak. The judge rejected Schmidt’s claim of provocation, and Schmidt was convicted of first-degree homicide and sentenced to life in prison. When Schmidt sought to overturn his conviction in federal court, the panel agreed that Schmidt had been denied his 6th Amendment right to counsel, and the court of appeals sent the case back to the lower court.

Barrett disagreed with her colleagues, in a separate opinion that began by  emphasizing that the standard for federal postconviction relief is “intentionally difficult because federal habeas review of state convictions” interferes with the states’ efforts to enforce their own laws. In this case, she contended, the state court’s decision rejecting Schmidt’s 6th Amendment claim could not have been “contrary to” or “an unreasonable application of” clearly established federal law (the requirement for relief in federal court) because the Supreme Court has never addressed a claim that a defendant has a right to counsel in a pretrial hearing like the one at issue in this case. While acknowledging that “[p]erhaps the right to counsel should extend to a hearing like the one the judge conducted in Schmidt’s case,” she warned that federal law “precludes us from disturbing a state court’s judgment on the ground that a state court decided an open question differently than we would—or, for that matter, differently than we think the [Supreme] Court would.”

In Akin v. Berryhill, Barrett joined a per curiam (that is, unsigned) decision in favor of a woman whose application for Social Security disability benefits had been denied by an administrative law judge (ALJ). The panel agreed with the woman, Rebecca Akin, that the ALJ had incorrectly “played doctor” by interpreting her MRI results on his own, and it instructed the ALJ to take another look at his determination that Akin was not credible. The panel indicated that it was “troubled by the ALJ’s purported use of objective medical evidence to discredit Akin’s complaints of disabling pain,” noting that fibromyalgia (one of Akin’s ailments) “cannot be evaluated or ruled out by using objective tests”; it also added that, among other things, the ALJ should not have discredited Akin’s choice to go with a more conservative course of treatment when she explained that “she was afraid of needles and that she wanted to wait until her children finished school before trying more invasive treatment.”

Barrett has been married for over 18 years to Jesse Barrett, who serves as an Assistant U.S. Attorney for the Northern District of Indiana. They have seven children (only two fewer than her old boss, Scalia). At her confirmation hearing, Barrett introduced three of her daughters, who were sitting behind her. She told senators that one daughter, then-13-year-old Vivian, was adopted from Haiti at the age of 14 months, weighing just 11 pounds; she was so weak at the time that the Barretts were told she might never walk normally or talk. The Barretts adopted a second child, Jon Peter, from Haiti after the 2011 earthquake, and Barrett described their youngest child, Benjamin, as having special needs that “present unique challenges for all of us.” Since becoming a judge, Barrett has reportedly commuted from her home in South Bend to Chicago, roughly 100 miles away, a few days a week; if she is nominated, she would likely move her family to the Washington, D.C., area and trade that commute for a shorter one to One First Street, N.E.

Posted in: Profiling potential nominees to succeed Justice Kennedy, Retirement of Justice Anthony Kennedy, Featured

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